United States v. Alberto-Sosa

• Decision Date: 20 January 2023
• Docket Number: Civil Action 20-5721,CRIMINAL ACTION 17-446-1
• Parties: UNITED STATES OF AMERICA v. JOSE MANUEL ALBERTO-SOSA
• Court: U.S. District Court — Eastern District of Pennsylvania

UNITED STATES OF AMERICA
v.
JOSE MANUEL ALBERTO-SOSA

Civil Action No. 20-5721

CRIMINAL ACTION No. 17-446-1

United States District Court, E.D. Pennsylvania

January 20, 2023

MEMORANDUM

John R. Padova, J.

Defendant has filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255, asking that we vacate his conviction and sentence based on ineffective assistance of counsel. The Government opposes the Motion on the grounds that Defendant has waived his claims for relief, pursuant to the terms of his Guilty Plea Agreement and his testimony before this Court. We held an evidentiary hearing on the Motion on December 8, 2022. For the reasons that follow, the Motion is now denied.

I. BACKGROUND

On August 24, 2017, Defendant was charged with one count of manufacturing child pornography images, in violation of 18 U.S.C. §§ 2251(a) and (e) (Count I), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) (Count II). The charges against him arose from his possession of naked and sexually explicit photographs of a nine-year-old girl that he admitted he took on his cell phone in late June of 2017. (6/6/19 Hr'g Tr. at 16-20.)

At a June 6, 2019 Hearing, Defendant pled guilty to both Counts of the Indictment, pursuant to a written Guilty Plea Agreement under Federal Rule of Civil Procedure 11(c)(1)(c), in which the Government and Defendant jointly recommended that the Court impose a 262-month prison sentence for Defendant's offenses. (Id. at 30; Plea Agreement ¶ 6.) The Agreement provided that if the Court accepted the sentence, Defendant agreed to “voluntarily and expressly” waive his right

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to appeal and collaterally attack his conviction or sentence. (Plea Agreement ¶ 16.) The Guilty Plea Agreement, however, preserved Defendant's “right to file a claim, if otherwise allowed by law, that an attorney who represented [him] during the course of [his] criminal case provided constitutionally ineffective assistance.” (Id.)

After questioning Defendant regarding his willingness to enter into the Guilty Plea Agreement and his understanding of its terms, and finding that he was competent to plead, that his guilty plea was voluntary, and that there was a factual basis for his guilty plea, we accepted Defendant's guilty plea. (6/6/19 Hr'g Tr. at 30.) Subsequently, on September 18, 2019, we sentenced Defendant to 262 months' imprisonment-the term that he bargained for in his Guilty Plea Agreement-to be followed by five years' supervised release.

On November 16, 2020, Defendant filed the instant pro se 28 U.S.C. § 2255 Motion, in which he asserts eight claims of ineffective assistance of counsel.^[1] Specifically, Defendant asserts that his trial counsel was ineffective in failing to (1) file a motion to suppress his self-incriminating statements; (2) file a motion to suppress evidence seized in violation of his Fourth Amendment right to be free from unreasonable searches and seizures; (3) file a motion to dismiss the Indictment; (4) investigate his case and possible defenses; (5) inform him of the nature of the charges against him; (6) advise him not to waive his right to appeal; (7) file objections to his Presentence Investigation Report (“PSR”); and (8) file a requested direct appeal.

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II. STANDARD OF REVIEW

Defendant has moved for relief pursuant to 28 U.S.C. § 2255, which provides as follows:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence

28 U.S.C. § 2255(a). In order to prevail on a § 2255 motion, the movant's claimed errors of law must be constitutional, jurisdictional, “a fundamental defect which inherently results in a complete miscarriage of justice,” or “an omission inconsistent with the rudimentary demands of fair procedure.” Hill v. United States, 368 U.S. 424, 428 (1962); see also United States v. Travillion, 759 F.3d 281, 288 (3d Cir. 2014) (stating that “relief under § 2255 is available only when ‘the claimed error of law was a fundamental defect which inherently results in a complete miscarriage of justice, and . . . present[s] exceptional circumstances where the need for the remedy afforded by the writ . . . is apparent.'” (alterations in original) (quoting Davis v. United States, 417 U.S. 333, 346 (1974) (internal quotation marks omitted))).

“In rendering a decision on a defendant's § 2255 motion, ‘a district court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record.'” United States v. Smith, Crim. A. No. 02-172-26, 2022 WL 3083033, at *3 (E.D. Pa. Aug. 3, 2022) (quoting Johnson v. United States, 294 Fed.Appx. 709, 710 (3d Cir. 2008) (internal quotation marks omitted)). However, “vague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation by the District Court.” United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000) (citing United States v. Dawson, 857 F.2d 923, 928 (3d Cir. 1988)).

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Here, all of Defendant's claims for § 2255 relief are based on alleged deprivations of his constitutional right to the effective assistance of counsel. In order to prevail on a claim for ineffective assistance of counsel, a criminal defendant must demonstrate that (1) his attorney's performance was deficient, i.e., that the performance was unreasonable under prevailing professional standards, and (2) that he was prejudiced by his attorney's performance. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). A party raising an ineffective assistance of counsel claim in a § 2255 petition bears the burden of proving both prongs by a preponderance of the evidence. United States v. Ballard, Crim. A. No. 03-810, 2017 WL 2935725, at *4 n.5 (E.D. Pa. July 10, 2017) (citing Pazden v. Maurer, 424 F.3d 303, 313 (3d Cir. 2005)) (additional citation omitted).

For purposes of establishing the first prong, a defendant must show that his “counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. In the context of a guilty plea, this objective standard requires that counsel “give a defendant enough information ‘to make a reasonably informed decision whether to accept a plea offer.'” United States v. Bui, 795 F.3d 363, 367 (3d Cir. 2015) (quoting Shotts v. Wetzel, 724 F.3d 364, 376 (3d Cir. 2013) (internal quotation marks omitted)). A court must be “highly deferential” to counsel's performance and “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.

For purposes of establishing the second prong, a defendant who pled guilty must show “that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” United States v. Fazio, 795 F.3d 421, 426 (3d Cir. 2015) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). “Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for

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his attorney's deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences.” Lee v. United States, 137 S.Ct. 1958, 1967 (2017).

III. DISCUSSION

A. Failing to File a Motion to Suppress his Self-Incriminating Statements

Defendant contends that his counsel was ineffective for failing to file a motion to suppress his self-incriminating statements. Specifically, Defendant states that his “counsel was constitutionally ineffective for failing to file a motion to challenge or dismiss the superseding information,” which he alleges the Government issued after a grand jury failed to return an indictment against him on May 13, 2016, based on the Government's use of his “own selfincriminating statements” in that charging document. (Def. Br. at 17 of 37.)

We find, as a preliminary matter, that Defendant's factual allegations “are clearly frivolous on the basis of the existing record.” Smith, 2022 WL 3083033, at *3 (quoting Johnson, 294 Fed.Appx. at 710 (internal quotation marks omitted)). The record in this case shows that (1) Defendant's crimes were reported to police in July 2017; (2) a grand jury for the Eastern District of Pennsylvania returned a two-Count Indictment against Defendant one month later, in August 2017; and (3) the Government never charged Defendant with a superseding information. (6/6/19 Hr'g Tr. at 16-17; Docket No. 1-1.) Therefore, Defendant's allegations-that a grand jury failed to indict him and that the Government charged him with a superseding information in 2016-are baseless and factually impossible because Defendant was not charged with a superseding information in this case at all and he was certainly not charged with a superseding information more than one year before his crimes were committed. Accordingly, to the extent Defendant argues that his counsel was ineffective in failing to seek dismissal of a superseding information

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that never existed, his claim is denied as meritless. See United States v. Barnes, 324 F.3d 135, 139 (3d Cir. 2003) (“[A]n attorney's performance cannot have prejudiced a defendant if his alleged ineffectiveness was the failure to advance an unmeritorious claim that could not have been successful had it been advanced.” (citation omitted)).

Moreover, we conclude that Defendant has not established a claim for ineffective assistance of counsel to the extent he may be arguing...